18 AAC 70.235. Site-specific criteria

(a) The department will, in its discretion, establish a site-specific water quality criterion that modifies a water quality criterion set out in 18 AAC 70.020(b)

(1) in a permit, certification, or approval as described in (b) of this section; or

(2) in regulation as described in (c) of this section.

(b) If the department finds that the natural condition of a waterbody is demonstrated to be of lower quality than a water quality criterion set out in 18 AAC 70.020(b) , the natural condition constitutes the applicable water quality criterion. Upon application or on its own initiative, the department will determine whether a natural condition of a waterbody should be approved as a site-specific water quality criterion in a permit, certification, or approval issued by the department. Before making the determination, the department will issue public notice of a proposed approval under this subsection and provide opportunity for public comment. If a natural condition of a waterbody varies with time, the natural condition will be determined to be the prevailing highest quality natural condition of the waterbody measured during an annual, seasonal, or shorter time period before discharge or operation, or as the actual natural condition of the waterbody measured concurrent with discharge or operation. The department will, if necessary to adequately protect water quality,

(1) determine a natural condition for one or more seasonal or shorter time periods to reflect variable ambient conditions; and

(2) require additional or continuing monitoring of natural conditions as a condition of a permit, certification, or approval.

(c) Upon application, or on its own initiative, the department will, in its discretion, set site-specific criteria in regulation if the department finds that the evidence reasonably demonstrates that the site-specific criterion will fully protect designated uses in 18 AAC 70.020(b) and that

(1) for reasons specific to a certain site, a criterion in 18 AAC 70.020(b) is more stringent or less stringent than necessary to ensure full protection of the corresponding use class; or

(2) a criterion would be better expressed in terms different from those used in 18 AAC 70.020(b) .

(d) The department will set a site-specific criterion under (c) of this section for the "growth and propagation of fish, shellfish, other aquatic life, and wildlife" use classes in 18 AAC 70.020(a) (1)(C) and 18 AAC 70.020(a) (2)(C) only if the department finds that the evidence is sufficient to reasonably demonstrate that

(1) the species or habitats present, or expected to be present under natural conditions, are more sensitive or less sensitive to a substance than indicated by the criterion, and a site-specific criterion is required to prevent adverse effects or to alleviate an unnecessarily restrictive general criterion; or

(2) the natural characteristics of the receiving environment would increase or reduce the biological availability or the toxicity of a substance, or otherwise alter the substance, and a site-specific criterion is required to prevent adverse effects or to alleviate unnecessarily restrictive general criterion.

(e) An applicant seeking a site-specific criterion under this section shall provide all information that the department determines is necessary to modify an existing criterion. The department will, in a timely manner, request and review for completeness, information submitted under this subsection. In all cases, the burden of proof is on the applicant seeking a site-specific criterion.

History: Eff. 11/1/97, Register 143; am 4/29/99, Register 150

Authority: AS 46.03.010

Editor's note: The development documents for site-specific criteria established under 18 AAC 70.235(b) in a permit, certification, or approval may be reviewed in or requested from the department's Juneau office.

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